TMI Blog2022 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... eference were therefore clarificatory and, thus, retrospective. The said Explanations , the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The amendments by way of Explanation 5 to s. 43B and Explanation 2 to s. 36(1)(va), it concluded, are to therefore take effect only from AY 2021-22, and which view is unmistakable on a plain reading of the said documents. The impugned order is completely silent on, and there is no reference therein either to the said Explanations or if the same are retrospective, concerning itself only with the merits of the impugned additions, impermissible u/s. 143(1) in view of the conflict of judicial opinion and the absence of any decision by the Hon ble jurisdictional High Court; none being brought to my notice by the parties, or otherwise found. No counter in this regard was also raised by Sh. Halder before me. There is, in view of the foregoing, no question of the said Explanations being read as retrospective, so as to apply for the relevant year, sustaining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t disallowance has been on merits, relying on decisions by the Hon ble High Courts, cited at paras of the impugned order. He, however, could not answer the query by the Bench as to how, in the absence of any decision in the matter by the Hon ble jurisdictional High Court, could an adjustment be made u/s. 143(1) in view of a cleavage of judicial opinion in the matter. He also could not advance any argument in defense on the Bench clarifying to him that it would place reliance on its recent decision in Nikhil Mohine v. Dy. CIT (in ITA Nos. 37 38/Jab/2021, dated 18/11/2021), deciding the matter in favour of the assessee. 4. I have heard the parties, and perused the material on record. 4.1 At the very outset it was observed by the Bench that the appeal is delayed by a period of 126 days. The assessee has, however, placed on record a condonation petition dated 16/12/2021, which attributes the delay to the technical glitches at the portal of the Department where the appeal is to be instituted and, further, toward which the assessee had in fact also raised a grievance with the relevant cell of the Department, i.e., on its e-portal, to though no response therefrom. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by s. 43B(b), implying, in context, u/s. 37(1) r/w s. 43B(b), which were aplenty, it opined, could be validated only by disregarding the clear language of the relevant provisions, upheld constitutionally and not read down. The said decisions must nevertheless be respected, and no adjustment contrary thereto could be made u/s. 143(1); there being no decision by the Hon'ble jurisdictional High Court in the matter. The only manner, therefore, available for the Revenue to effect an adjustment u/s. 143(1)/154, is where the Explanations to section 36(1)(va) and s. 43B(b) inserted by Finance Act, 2021, which attempt to resolve the issue of the employee s contribution to the employee welfare funds being governed by section 43B(b), i.e., to the exclusion of s. 36(1)(va), are held as retrospective. Legislative intent being the cornerstone and the sole determinant of any interpretative exercise, both the language of the provisions, as well as of the recently inserted Explanations thereto, introduced with a view to, as stated therein, remove any doubt in the matter, are unambiguously clear, so that s.36(1)(va) and s. 43B are applicable on different sums. Further, the stated da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal is in fact in agreement with that projected by the Board per its Circular (No. 22/2015, dtd. 17/12/2015), as also that canvassed per the impugned order with reference to the cited decisions, both explaining, as did the Explanatory Notes on the insertion of s. 36(1)(va) on the statute, the object of the said provision. It is this view, which in fact, as also noticed by the Tribunal, represented the uniform view across all the Hon ble Courts prior to the deletion of the second proviso to s. 43B by Finance Act, 2003, w.e.f. 01/4/2004, which the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. 4.4 The said Explanations , the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The amendments by way of Explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
